Jackson v. State

• Decision Date: 21 April 1994
• Docket Number: No. 79509,79509
• Citation: 648 So.2d 85
• Parties: 19 Fla. L. Weekly S215 Andrea Hicks JACKSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 85

648 So.2d 85

19 Fla. L. Weekly S215

Andrea Hicks JACKSON, Appellant, v. STATE of Florida, Appellee.

No. 79509.

Supreme Court of Florida.

April 21, 1994.

Order Denying Rehearing

Oct. 13, 1994.

Nancy A. Daniels, Public Defender, and W.C. McLain, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Andrea Hicks Jackson appeals her death sentence. ¹ Jackson was convicted of the 1983 first-degree murder of a Jacksonville police officer and sentenced to death. The conviction and sentence were affirmed by this Court on direct appeal. Jackson v. State, 498 So.2d 406 (Fla.1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987). After a death warrant was signed in 1989, Jackson filed a rule 3.850 motion with the trial court and a petition for writ of habeas corpus with this Court. We found merit to Jackson's Booth ² claim, vacated the death sentence, and remanded for a new sentencing proceeding before a new jury. Jackson v. Dugger, 547 So.2d 1197 (Fla.1989).

According to the testimony presented at the resentencing hearing, Jackson was seen vandalizing her own car. Officers Bevel and Griffin responded separately to the disturbance call. Jackson told the officers that someone had "busted out" the windows in her car but failed to inform the officers she was responsible for the damage. At the officers' request, Jackson went upstairs to her estranged husband's apartment and got her registration. Officer Griffin then left Officer Bevel to write the police report. Jackson sat in the police car with Officer Bevel while he wrote the report. The report, which was later found in the patrol car, stated that Officer Bevel believed that Jackson may have made a false report of criminal mischief to her vehicle.

Jackson was seen entering and leaving her husband's apartment at least three times after the officers' arrival. While Jackson was upstairs, Officer Bevel spoke to neighbors who told him that Jackson had in fact vandalized her own car. As Jackson left the apartment At the resentencing proceeding Jackson took the position that, at the time of the shooting, she was under the influence of drugs and alcohol, had a flashback of a prior sexual assault, perceived the struggle with Officer Bevel as an attempted rape and shot the officer as the result of a panic attack. In support of this contention, Jackson presented expert testimony that she suffered from post-traumatic stress disorder as a result of extended sexual abuse by her stepfather and that she suffered from battered woman syndrome. Much of this testimony was based on a hypnotic regression performed on Jackson. The three mental health experts who testified regarding Jackson's mental state at the time of the shooting were all of the opinion that Jackson was under the influence of extreme mental or emotional disturbance and her capacity to appreciate the criminality of her conduct, or to conform her conduct to the requirements of the law, was substantially impaired.

the final time, she was seen putting a gun in the waistband of her pants. When Officer Bevel informed Jackson that she was under arrest for making a false police report, Jackson responded by hitting the officer and telling him that she would not get into the police car. The officer grabbed Jackson's hands, walked her to the back of the patrol car and placed her in the back seat. As the officer grabbed Jackson's knees in an attempt to put her legs in the car, Jackson told the officer that he made her drop her keys. As Officer Bevel stepped back and bent down as if to look for the keys, Jackson pulled the gun from her waistband and shot the officer six times. Four of the shots were to the head and two entered the shoulder area. The officer fell on Jackson, who pushed him aside and fled.

After hearing the testimony, the new jury recommended death by a vote of seven to five. The trial judge followed the recommendation, again sentencing Jackson to death. In aggravation the trial judge found 1) the victim was a law enforcement officer engaged in the performance of his official duties; ³ and 2) the murder was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification. ⁴ In mitigation, the trial judge found Jackson had a difficult childhood that included sexual abuse and as an adult she suffered domestic violence and abused drugs and alcohol. The judge rejected the statutory mitigating circumstances of extreme mental or emotional disturbance ⁵ and impaired capacity. ⁶ Jackson raises seven claims in this appeal. ⁷

First we address Jackson's claim that both the cold, calculated, and premeditated aggravating factor and the standard jury instruction on this factor are unconstitutionally vague. Because these claims were preserved for our review, we address them both. Although we reject the challenge to the aggravating factor itself, see Fotopoulos v. State, 608 So.2d 784 (Fla.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2377, 124 L.Ed.2d 282 (1993); Klokoc v. State, 589 So.2d 219, 222 (Fla.1991), we find merit to Jackson's claim that the instruction given in this case on the aggravating factor of cold, calculated, and premeditated (CCP) is unconstitutionally vague.

The trial court in this case denied defense counsel's request for an expanded instruction on the CCP aggravator, instead instructing Jackson's jury that it could consider, if established by the evidence, that "the crime for which the defendant is to be sentenced was committed in a cold, calculated and premeditated manner without a[ny] pretense of moral or legal justification." This standard instruction, which mirrors the language of section 921.141(5)(i), was upheld by this Court in Brown v. State, 565 So.2d 304, 308 (Fla.), cert. denied, 498 U.S. 992, 111 S.Ct. 537, 112 L.Ed.2d 547 (1990). However, we believe that in light of the United States Supreme Court's decisions in Espinosa v. Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), and Hodges v. Florida, --- U.S. ----, 113 S.Ct. 33, 121 L.Ed.2d 6 (1992), the issue must be considered anew.

In Brown, the appellant claimed that the CCP instruction was unconstitutional based upon the Supreme Court's decision in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). This Court rejected that claim on two bases: 1) "[w]e have previously found Maynard inapposite to Florida's death penalty sentencing regarding this state's heinous, atrocious, and cruel aggravating factor"; and 2) because Brown attempted to transfer Maynard to the different aggravating factor of CCP. Brown, 565 So.2d at 308.

The first rationale was discredited in Espinosa where the Supreme Court noted that it has held "instructions more specific and elaborate than [Florida's standard heinous, atrocious, or cruel instruction] unconstitutionally vague." --- U.S. at ----, 112 S.Ct. at 2928. The Supreme Court rejected the State's argument that there is no need to instruct the jury with specificity because the jury is not the sentencer under Florida's sentencing scheme. Instead, the Supreme Court noted that under Florida's sentencing scheme, which requires the trial court to give "great weight" to the jury's recommendation, "the trial court indirectly weighed the invalid aggravating factor that we must presume the jury found." Id. Because "[t]his kind of indirect weighing of an invalid aggravating factor creates the same potential for arbitrariness as the direct weighing of an invalid aggravating factor," the result was error. Id.

The second rationale of Brown has been undercut by Hodges, where the Supreme Court vacated this Court's judgment affirming Hodges' conviction and death penalty and remanded for consideration in light of Espinosa. --- U.S. at ----, 113 S.Ct. at 33. On remand, this Court noted that the heinous, atrocious, or cruel (HAC) aggravating factor played no part in Hodges' sentencing, but that CCP did. However, this Court never reached the merits of Hodges' claim that the CCP instruction was unconstitutionally vague because Hodges did not object to the form of the instruction at trial, and thus did not preserve the issue for review. Hodges v. State, 619 So.2d 272, 273 (Fla.), cert. denied, --- U.S. ----, 114 S.Ct. 560, 126 L.Ed.2d 460 (1993).

Because the challenge to the CCP instruction has been properly preserved in this case and because Brown and its progeny can no longer serve as authority for summarily rejecting this claim, we must reconsider the constitutionality of the standard CCP instruction. As noted above, the jury in this case was instructed that it could consider, if established by the evidence, that "the crime for which the defendant is to be sentenced was committed in a cold, calculated and premeditated manner without a[ny] pretense of moral or legal justification." This standard instruction simply mirrors the words of the statute. Yet, this Court has found it necessary to explain that the CCP statutory aggravator applies to "murders more cold-blooded, more ruthless, and more plotting than the ordinarily reprehensible crime of premeditated first-degree murder," Porter v. State, 564 So.2d 1060, 1064 (Fla.1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991), and where the killing involves "calm and cool reflection." Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992). The Court has adopted the phrase "heightened premeditation" to distinguish this aggravating circumstance from the premeditation element of first-degree murder. Id.; Rogers v. State, 511 So.2d 526, 533 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct.

                733, 98 L.Ed.2d 681 (1988).  The Court has also explained that "calculation" constitutes a careful plan or a prearranged design.  Rogers, 511 So.2d at 533.   These explications by the Court make it clear that CCP encompasses something more than

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